Applying “Basic Property Law Principles,” SCOTUS Upholds Forest Service’s Grant of Pipeline Right-of-Way Beneath the Appalachian Trail
“Sometimes a complicated regulatory scheme may cause us to miss the forest for the trees, but at bottom, these cases boil down to a simple proposition: A trail is a trail, and land is land.”
Justice Thomas, Opinion of the Court in United States Forest Service v. Cowpasture River Preservation Association, No. 18–1584 (June 15, 2020)
In United States Forest Service v. Cowpasture River Preservation Association, one of this Term’s most closely-watched cases, the Supreme Court of the United States ruled that the United States Forest Service has authority under the Mineral Leasing Act to grant rights-of-way through lands within the national forests, restoring the permitting process that interstate natural gas pipelines had relied on for decades. The Court’s 7-2 decision helps clear the way for the 600-mile Atlantic Coast Pipeline, which had stalled under a Fourth Circuit ruling that effectively converted the 2,200-mile Appalachian Trail into a barrier that could not be crossed by interstate natural gas pipelines without an Act of Congress for each new crossing. The Court’s decision also removes the cloud of uncertainty hovering over the dozens of pipelines that already cross beneath the Trail and the many other approvals the Forest Service has granted for infrastructure through which the Trail or another national trail crosses, including transmission lines, telecommunications sites, municipal water facilities, and roads.
This case concerns a special use permit that the pipeline secured from the Forest Service for a right-of-way for a 0.1-mile segment of pipe approximately 600 feet below a portion of the Appalachian Trail that lies within the George Washington National Forest.
Under the Mineral Leasing Act, the Forest Service has jurisdiction over the “Federal lands” within the George Washington National Forest. The National Park Service, for its part, administers the Trail under the National Trails System Act through a delegation of authority from the Secretary of the Interior. Pursuant to the Trails Act, the Forest Service entered into “right-of-way” agreements with the Park Service “for [the] approximately 780 miles of Appalachian Trail route within national forests,” including the George Washington National Forest. The issue before the Court was whether the lands within the forest were thereby removed from the Forest Service’s jurisdiction and placed under the Park Service’s control. If that were the case, as the Fourth Circuit found, then the Forest Service had no authority to grant the pipeline right-of-way under the Mineral Leasing Act, which contains a regulatory carve-out for “lands in the National Park System,” including lands administered by the Secretary of the Interior through the Park Service.
The Supreme Court reversed the Fourth Circuit, concluding that the lands the Trail crosses remain under the Forest Service’s jurisdiction and continue to be “Federal lands” under the Mineral Leasing Act. The Court’s analysis relied on “basic property law principles” to determine whether “one federal agency has transferred jurisdiction over lands … to another federal agency.” The Court began with the proposition that the “Trails Act refers to the granted interests as ‘rights-of-way,’” and a “right-of-way is a type of easement.” Basic property law principles establish that “easements are not land, they merely burden land that continues to be owned by another.” This principle remains just as true when applied to the federal government, the Court said, as it does when applied to private and state property owners. Accordingly, “read in light of basic property law principles,” the agreement between the Forest Service and the Park Service “did not divest the Forest Service of jurisdiction over the lands that the Trail crosses.” Instead, “[i]t gave the Department of the Interior (and by delegation the National Park Service) an easement for the specified and limited purpose of establishing and administering a Trail.” But “the land itself,” the Court explained, remained under the Forest Service’s jurisdiction. And because “the lands that the Trail crosses are still ‘Federal lands’ … the Forest Service may grant a pipeline right-of-way through them – just as it granted a right-of-way for the Trail.”
The Court further supported its conclusion by analyzing the duties described in the Trails Act and clarifying that the Park Service “does not administer the ‘land’ crossed by the Trail,” but instead “administers the Trail as an easement,” which “is separate from the underlying land.” The Court looked to other federal statutes for examples of the “unequivocal and direct language” Congress uses “when it wishe[s] to transfer land from one agency to another” – language absent in the Trails Act. And the Court observed the “striking implications for federalism and private property rights,” posed by the Respondents’ theory of the case, which would convert tens of thousands of acres of privately-owned and state-owned lands crossed by National Park Service trails into lands in the National Park System.
The 21-page dissent – authored by Justice Sotomayor and joined by Justice Kagan – interprets the text of the statutes, “a half century of agency understanding, and common sense” as confirming “that the Trail is land.” The majority, for its part, devoted one of the latter sections of its opinion responding to the view that “the Trail cannot be separated from the underlying land,” again relying on “the plain language of the Trails Act and basic property principles.” But while the majority’s proposition that “[a] trail is a trail, and land is land,” is a “simple” one in at least some sense, the dissent certainly aimed to show that perhaps it isn’t so simple a proposition after all.
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This case was decided together with No. 18–1587, Atlantic Coast Pipeline, LLC v. Cowpasture River Preservation Association et al., also on certiorari to the Fourth Circuit.